JUDGMENT :

Biren Vaishnav, J.

1. This petition under Articles 226 and 227 of the Constitution of India is filed with a prayer to quash and set aside the order of the Gujarat Revenue Tribunal dated 17.04.2015 passed in Review Application No.TEN/CS/5/2013 in Revision Application No.TEN/BS/179/91.

2. The facts in brief are as under:

2.1 The question pertains to agricultural land of Revenue Survey Nos.40, 51, 54, 55 and 58 of Block No.41 admeasuring 5-84-00 sq. meters situated at Andharwadi, Taluka: Vyara, District: Tapi.

2.2 The respondent no.1 filed a Tenancy Case No.47/77 before Mamlatdar, Vyara, claiming tenancy right against his brother Abhesinh. The Mamlatdar by his order dated 25.07.1977 declared him as tenant. The petitioner's father preferred Tenancy Appeal No.84 of 1977 before the Deputy Collector who vide his order dated 18.09.1978 rejected the appeal. On a revision preferred by the petitioners, the Gujarat Revenue Tribunal by its order dated 19.12.1979 quashed the orders below and remanded the matter to the learned Mamlatdar and ALT Vyara.

2.3 The Mamlatdar by his order dated 16.09.1989 in Tenancy Case No.70/B/1/85/89 declared the respondent no.1 to be a tenant of his real brother.

2.4 The petitioners filed Tenancy Appeal No.35 of 1990 and the Deputy Collector by his order dated 24.10.1990, allowed the appeal. The respondent no.1 preferred Revision Application No.TEN/BS/179/1991 before the Gujarat Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948.

2.5 The Gujarat Revenue Tribunal by its order dated 11.12.2013 rejected the Revision of the respondent no.1 on merits. The respondent then filed a review being Review Application No.CS/5/2013 under Section 76, before another member and by the impugned order dated 17.04.2015 the Revision was allowed and the order of the Mamlatdar, Vyara, dated 16.09.1989 declaring the respondent no.1 as tenant was restored.

3. Mr. N.V. Gandhi learned advocate for the petitioners took me through the order of the Tribunal in the first round i.e. order dated 11.12.2013 and submitted that the Tribunal on legal interpretations of the term “family” under the Tenancy Act came to the conclusion that, both the petitioner and the respondent were members of the same family which was admitted and accordingly the order of the Deputy Collector dated 24.10.1990 was therefore rightly confirmed.

4. Mr. Gandhi submitted that the Tribunal has seriously erred by misreading the definition of “to cultivate personally” as defined under sub-section (6) of section 2 of the Tenancy Act read with provisions of section 4(a) of the Tenancy Act. He further submitted that the Tribunal should have appreciated that the term “a member of the owner's family as defined under section 4 of the Tenancy Act means a person who is connected by blood of affinity and there is no reason why a family should not comprise not only of parents and children but other relatives also. He relied on the decision of this Court in case of Smt. Amtibai v. Patel Shankarbhai reported in AIR 1983 N.O.C. 84 (Guj) where the Court was pleased to hold that “Where an uncle in law of landlady was cultivating the land, such person being related to landlady by marriage is also a member of her family and consequently he cannot claim himself to be a deemed tenant. He further submitted that the Tribunal ought to have appreciated that the intention of the legislature was to exclude the members of the landholders' family like children, cousins and other descendants of common ancestor from claiming the benefit of section 4. The mere fact that there was separation between the members of the family would not alter the blood relationship arising out of biological propensity. It can never be extinguished by separation in property of status of joint family as blood is always thicker than water. He has placed reliance on the decision of this Court in case of Valand Mafatbhai Kashibhai v. Valand Vithalbhai Motibhai reported in 1994 (1) GCD 14 an